0120141863
09-13-2016
Belkis D.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Belkis D.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120141863
Agency No. ARHQOSA12MAY01910
DECISION
Complainant appealed the Agency's February 18, 2014, final decision concerning her equal employment opportunity ("EEO") complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist (GS-13) within Sector C, Group C of the Agency's Contracting Command-National Capital Region ("ACC") in Alexandria Virginia.
On May 24, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), color (White), and reprisal for prior protected EEO activity (contact with EEO staff on August 30, 2011 and May 9, 2012) when:
1. On or around April 25, 2012, her first level supervisor, Group Chief, Sector C, Group C, ("S1"), accused her of lying about a leave slip that she contends was submitted to cover her absence in order to get an allergy shot;
2. She received a counseling memorandum dated May 7, 2012, signed by her second level supervisor, Acting Sector Chief for Sector C ("S2"), which served as a formal counseling statement for her insubordinate and unprofessional behavior displayed on April 25, 2012;
3. On May 9, 2012, S1 sent her an email informing her that her workload had been pulled from her; and,
4. On May 10, 2012, she was directed by her third level supervisor, Acting Chief of Staff, for the Army Contracting Command-National Capital Region ("S3"), to move from her office and assigned to a cubicle;
On appeal, Complainant appears to raise two additional claims of reprisal for her EEO activity related to the instant complaint in her appeal:
5. Complainant's reassignment to Contract Specialist at the Agency's ACC in Warren Michigan (effective January 13, 2013) lowered her pay grade from GS-13 to GS-12; and the documentation contains the statement "action at employee's request."
6. Management at her previous location has made efforts to "insert their resulting poor contracting and issues" on her first annual evaluation at her new site.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge ("AJ"). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
During the relevant time frame, employee morale at the ACC was fairly low in Complainant's sector, due in part to an entrenched office culture conducive to cliques, and multiple management reorganization. In April 2012, S1 (African-American) started working in Sector C, as a Group Chief. Shortly afterward S2 (African-American), convened a sector-wide meeting in response to Sector C Contract Specialists' confusion over the new chain of command. S2 introduced S1 as a first-line supervisor and explained that he would be a second-line supervisor going forward. Later that day, S1 visited Complainant's office and requested a meeting. Complainant refused, stated "you are not my supervisor" in an insubordinate manner, and directed S1 to S2, who Complainant identified as her first-line supervisor. The next day, Complainant had advance approval to leave work early, but she realized she required additional leave because she needed an allergy shot. The electronic scheduling system was down, so Complainant requested sick leave by slipping a note under S2's door. She also emailed both S1 (despite the assertion she was not her supervisor) and S2. Complainant left the office before receiving a response, which S1 interpreted as an additional act of insubordination.
S1 reported the incidents to S2 and they met with Complainant, who explained she had misunderstood the announcement at the meeting. S2 was concerned that Complainant would be upset because this was the second time she had been "passed over" for the position of Group Chief. However, after the meeting, Complainant's interactions with S1 appeared professional with the exception of her lack of response to S1's requests for an update on her workload and her schedule. Around that time, Complainant emailed S3 (white) claiming that S1 was "out to get [her]" due to a "misunderstanding" and requested a transfer to work under the supervisor she had before the last reorganization (white). Complainant was also concerned about working under management where the majority of her supervisors were "people of color." Complainant believed S1 and S2 were members of a clique that excluded Caucasians such as herself. S3 denied her requests multiple times. Meanwhile, S1 informed S3 that Complainant would not respond to her requests for an update her workload status and provide her scheduled hours. S3 had already been made aware of S1's first interactions with Complainant by S2.
Finding Complainant's conduct "unacceptable," S3 contacted Human Resources, which advised issuing a memorandum of counseling. In May 2012, at S3's instruction, S2 drafted the memorandum. S2 was out sick that week so S1, S3, and the Chief of Human Resources ("HR1") presented it to Complainant. In addition to the acts of insubordination, the memorandum also provided that Complainant acted unprofessionally by failing to follow S1's instructions and refusing to cooperate with other employees. S3 was especially concerned that Complainant was locking her office door when she left in the evening even though she had been instructed not to by management directly and on receipt of a Sector-wide email instructing all non-management employees to leave their doors unlocked at all times. S3 believed that employees were unaware if Complainant was available because she worked with her door closed. Complainant denied acting unprofessional or insubordinate and refused to sign the memorandum.
The next day, S1, S3, Complainant's team lead, and HR1 held a teleconference with the Labor Management Employee Relations Specialist ("HR2") in Agency Headquarters to discuss alternate solutions. Afterward, S2 directed S1 to reassign Complainant's workload and S3 directed Complainant's workspace moved to a cubicle. S1 also emailed Complainant informing her of her work schedule going forward and reminding her to request approval before taking leave. When Complainant arrived back to work she felt humiliated to find her computer set up in a cubicle normally reserved for a contractor. S1 allowed her to return to her office a few months later and work with her door closed when S3 transferred to another position. Complainant was later granted a transfer to the Agency's ACC in Michigan so she could care for her mother.
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
It is well-settled that harassment based on an individual's race and reprisal for prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) s/he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) s/he was subjected to unwelcome conduct related to his/her membership in those classes and his/her prior EEO activity; (3) the harassment complained of was based on race and prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
Claim 1
We find Complainant effectively withdrew her allegations in Claim 1, as the record contains an email and sworn testimony from Complainant stating that she no longer believes S1 accused her of lying about requesting leave for her allergy shot appointment.
Claims 2, 3, and 4
For allegations describing common workplace occurrences, unless it is reasonably established that the actions were somehow abusive or offensive, and were taken in order to harass complainant on the basis of a protected class, such everyday events are not sufficiently severe or pervasive so as to offend the general sensibility of an individual experiencing such occurrences in the workplace. Goines v. Dep't of Veterans Affairs, EEOC Appeal No. 01A54108 (July 20, 2006); Wolf v. United States Postal Serv., EEOC Appeal No. 01961559 (July 23, 1998); Long v. Veterans Admin., EEOC Appeal No. 01950169 (Aug. 14, 1997).
The Agency provided a legitimate nondiscriminatory reason for the allegations Claims 2, 3 and 4, which concerned the memorandum of counseling, pulling Complainant's workload and relocating her workspace from her office to a cubicle, respectively. Specifically, these claims all describe S3's, and to a lesser extent S1's and S2's efforts to curb Complainant's insubordinate, unprofessional conduct, and failure to follow instructions. Such responses to employee conduct are within the scope of a supervisor's responsibilities; and when viewing the allegations as one continuous claim of harassment, as alleged, we consider them to be common workplace occurrences. Complainant not shown that the actions described in Claims 2, 3, and 4 were so severe or pervasive as to constitute harassment, nor has she provided evidence that the Agency's stated legitimate nondiscriminatory reason was pretext for discrimination on the basis of her protected class, which is required for a finding of harassment.
On appeal, Complainant argues that S3 "lied" and "fabricated" all of the Agency's legitimate nondiscriminatory reasons for its actions in Claims 2, 3, and 4, but again fails to provide any proof. While a thorough review of the record reveals that S3 was instrumental in bringing about the actions in Claims 2, 3, and 4, and that she was the most openly critical of Complainant's conduct, it also makes clear that S3 did not act unilaterally. S1 and S2 initiated the actions in Claims 2, 3 and 4 by notifying S3 of Complainant's insubordinate and unprofessional conduct. It is also evident that S3 took care to ensure her response to Complainant's conduct was consistent with Agency policy by acting on the advice of two HR Specialists. Hence, Complainant still has not met her burden of establishing discriminatory motive and the requisite severity of the alleged discriminatory acts in Claims 2, 3, and 4.
Claims 5 and 6
A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the formal complaint. 29 C.F.R. � 1614.106(d). Our guidance provides that in cases where subsequent acts of alleged discrimination do not add to or clarify the original claim, and/or could not have been reasonably expected to grow out of the investigation of the original claim, the later incident should be the subject of a separate EEO complaint. EEOC Management Directive 110, at 5-13 (Aug. 5, 2015).
Claim 5 concerns a personnel action that became effective a month and a half prior to the conclusion of the EEO investigation of Complainant's original complaint (Claims 1 through 4). Complainant provides no explanation for why she did not take the opportunity to amend her complaint during this time frame. Claim 5 is related to and could be reasonably expected to grow out of the investigation of Complainant's original complaint because the investigation was active when the alleged retaliation occurred and Complainant identified the investigation as part of the protected EEO activity that allegedly caused the retaliation. See MD-110 at 5-14. Hence the only proper time for Complainant to have raised Claim 5 would have been during the EEO investigation of her original complaint.
The allegation in Claim 6, regarding Complainant's employee review after relocating to the Agency's Michigan ACC office, occurred after the conclusion of the EEO investigation of the original complaint. If complainant wishes to pursue Claim 6 as a separate complaint, then she must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 13, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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